U.S.
District Judge Florence-Marie Cooper of the Central District of California
Friday denied a motion by the Austrian government to dismiss a lawsuit charging
it with wrongful possession of valuable artwork looted by the Nazis.

Cooper
ruled for the second time that the claims by Maria V. Altmann, 88, of Cheviot
Hills fall under the “expropriation” exception
to the protections granted foreign governments from U.S.
civil process by the Foreign Sovereign Immunities Act.

Friday’s
ruling, which obviated the need for a hearing that was scheduled for today,
follows a U.S. Supreme Court ruling earlier this year that allowed the suit to
proceed. The 6-3 decision held that the FSIA, rather than the law in effect in
the 1940s when the paintings came into Austria’s
possession, determines the scope of any immunity in the case.

Altmann
seeks to recover—or be compensated for—six Gustav Klimt paintings owned by her
uncle, Czech banker and sugar magnate Ferdinand Bloch. The paintings, with an
estimated value of $150 million, are now part of the collection of the Austrian
Gallery in Vienna.

The
high court granted review after a Ninth U.S. Circuit Court of Appeals panel
ruled that Austria
could not possibly have expected sovereign immunity to apply to artworks that
were stolen by Nazis and were allegedly retained illegally by the government
after the war.

In
her original order, Cooper held that Altmann had pled the three elements of the
expropriation exception—that the property was taken in violation of
international law, that it is “owned or operated” by an agency or
instrumentality of a foreign government, and that the agency or instrumentality
is engaged in commercial activity in the United
States.

Cooper
noted that the paintings have been reproduced and sold numerous times in the United
States in the form of posters
and catalogs.

In
fact, some of the Klimt works apparently have become part of American
commercial and popular culture. It is possible to purchase reproductions of the
most famous of the paintings—the golden, Byzantine-influenced “Adele Bloch-Bauer
I,” a portrait of Altmann’s aunt—on wristwatches, calendars, and other goods.

There
are Klimt computer games, playing cards and stationery.

In
its latest motion, Austria
again raised an issue that the Supreme Court declined to consider—whether
Altmann’s failure to exhaust her legal remedies in Austria
precluded her from claiming that the republic’s retention of the paintings
violated international law.

Altmann’s
attorney, E. Randol Schoenberg of Los
Angeles, argued that the
$135,000 filing fee and the burden of potentially lengthy proceedings on his
octogenarian client rendered the Austrian remedy inadequate.

Cooper’s
previous ruling in favor of the plaintiff on that issue was upheld by the Ninth
Circuit and is now the law of the case, the district judge said Friday. Nor did
Austria
cite any new law or facts that would support reconsideration, Cooper said.

She
rejected Austria’s
urging that she revisit the issue on the basis of a comment in Justice Stephen
Breyer’s concurring opinion in the high court case, joined by Justice David
Souter, that exhaustion might be required.

“Justice Breyer’s concurring opinion is
mere dictum,” Cooper wrote, since the issue was not before the court. “...Even
if the opinion were not dictum on an issue the court refused to consider, it is
not the opinion of the Court, and it is therefore not binding.”